Attorney for driver in Saratoga hit-and-run case blames cyclist

Delivering a forceful but risky closing argument, the lawyer for a Saratoga man accused of plowing into two cyclists and then driving away turned the tables Friday -- placing the blame for the first time on the lead rider for yelling so loudly that his startled companion toppled off her bike and smashed into the asphalt.

Both cyclists then conspired to blame affluent businessman Robert Schiro for hit-and-run driving in hopes of milking him for money via a lawsuit, Schiro's lawyer Dan Jensen contended.

Jensen contended that lead rider David Nelson was yelling at the BMW because he thought the car was coming too close to him and his then-fiancee Ashley Jackson on Highway 9 near Fruitvale Avenue in Saratoga.

"The reality is, he's yelling and screaming, and Ashley comes up on his wheel and panics and falls down," Jensen said. "He caused the accident when he got mad and arrogant."

But Jensen's strategy is risky because the Nelsons made for sympathetic witnesses, especially Ashley, who was eight months pregnant, tearful and spoke in a sometimes-shaky voice about her double vision and the other disabilities caused by her fall.
In a rebuttal statement, prosecutor Katrina Ohde calmly scoffed at Jensen's account, calling it "theatrics" and "smoke and mirrors."

"Not just one witness, not just two witnesses, not just three witnesses, but four different witnesses detailed Mr. Schiro's own admissions he was involved in the accident," Ohde argued.

To accept Jensen's account, she contended, jurors also would have to believe there had been a wide-ranging conspiracy to cover up David Nelson's culpability, involving, among others, a sheriff's deputy who heard Schiro admit he'd struck the woman.

They'd also have to believe in several unusual coincidences, including that Schiro's car just happened to be missing its passenger-side mirror when police seized it. David Nelson had said he saw a mirror dangling off the BMW when it briefly stopped, then sped off.

Schiro has pleaded not guilty to three counts of hit-and-run driving -- two felonies and a misdemeanor. If he's convicted, he faces a maximum of four years in county jail.

After about four days of testimony, the jury of seven women and five men began deliberating about 3 p.m. Friday but left for the long weekend without a verdict in a case that has galvanized the Bay Area's cycling community. Court is closed Monday for Lincoln's Birthday.

The jury must decide not only between two conflicting accounts of what happened on April 19, 2009, but also must evaluate whether those events meet the legal definition of the charges. The first two counts -- felony hit-and-run driving and felony hit-and-run driving causing serious and permanent injury -- are based on what happened to Ashley Jackson Nelson. The misdemeanor count is related to David Nelson; Schiro is charged with brushing into him and bruising his arm.

Schiro has to have been "involved" in the incident, but his car does not have to have made physical contact with the Nelsons. For instance, when a motorist swerves on a freeway and two cars crash as a result, the driver of the car that swerved is considered to have been involved.

Schiro also had to have known someone was likely to be injured. And he had to have failed to do his duty by stopping to help out and provide his information and driver's license to the victims or authorities. Jensen claimed Schiro couldn't hear David Nelson shouting because the BMW is so well-insulated. But the car did pause briefly. And one prosecution witness testified Schiro asked him to order a new mirror -- from out of town -- ostensibly because Schiro's girlfriend had been in a car accident.

Jensen sought to explain Schiro's admissions of guilt to four people, the most incriminating evidence against him. He also noted the jury cannot rely on those statements alone to convict him.

"Just because a 72-year-old man reads he was a suspect in the paper and does and says some dumb things doesn't mean anything," Jensen said.

He also argued that David Nelson's conflicting statements about his wife's location at the time of the crash were crucial because "the science" means the hit-and-run accident couldn't have happened the way Nelson said it did if she were riding her bicycle as far away from him as he claimed.

But Ohde said Nelson was distraught when he estimated the distance because his wife lay "gurgling" on the road with broken bones and a severe head injury that has left her with a weak left side, the distorted vision and memory problems to this day.